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To promote stable, constructive labor-management relations through the resolution and prevention of labor disputes in a manner that gives full effect to the collective-bargaining rights of employees, unions, and agencies.

This matter is before the Authority on the Agency's motion for
reconsideration of the Authority's decision in 48 FLRA 822 (1993). The Agency
also requested a stay of the decision in 48 FLRA 822. The Union did not file an
opposition to the motion or the request for a stay. Because the Agency fails to
establish that extraordinary circumstances exist that warrant reconsideration
of our decision, we will deny the Agency's motion for reconsideration and
request for a stay.

II. Arbitrator's Award and the Decision in 48 FLRA 822

The decision in 48 FLRA 822 considered the Agency's exceptions to an
award issued by Arbitrator Joseph Lazar. The Arbitrator held a hearing
concerning three consolidated grievances protesting the Agency's implementation
of a performance appraisal system. The Agency maintained that the Arbitrator
was not properly selected and the Agency refused to attend the arbitration
hearing. The Arbitrator issued an award resolving the grievances.

In exceptions filed with the Authority, the Agency contended that the
award was deficient because the Arbitrator was not properly selected pursuant
to the parties' collective bargaining agreement. The Agency also contended that
the Arbitrator had no jurisdiction over the grievances under section 7116(d) of
the Statute because the subject matter of the grievances concerned the same
issues that were contained in unfair labor practice (ULP) charges that had been
filed by the Union before the Union filed the grievances. For reasons fully set
forth in 48 FLRA 822, we found that the Agency failed to establish that
the award was deficient and we denied the Agency's exceptions.

III. Motion for Reconsideration

The Agency contends that our decision in 48 FLRA 822 is contrary to law
and that extraordinary circumstances exist warranting reconsideration of that
decision. The Agency asserts that allowing the Arbitrator's award to stand
would seriously disrupt the Agency's operations and affect its ability to carry
out its mission by preventing the Agency from implementing and administering
its performance and recognition system (PARS).

The Agency renews the contention made in its exceptions that the
Arbitrator was not properly selected as a national arbitrator pursuant to
Article 44 of the parties' collective bargaining agreement. The Agency asserts
that nothing in Article 44 permits one party to select a national
arbitrator unilaterally and argues that the Authority should have reached that
conclusion based on its own interpretation of the agreement, rather than
reaching a contrary conclusion after deferring to the Arbitrator's erroneous
interpretation of the agreement. The Agency maintains that the Authority's
conclusion that the Arbitrator's award was not deficient on the ground that it
failed to draw its essence from the parties' collective bargaining agreement
was based on an erroneous legal standard. The Agency argues that it is
inappropriate in this case to defer to the Arbitrator's interpretation of the
agreement because the Arbitrator was unilaterally selected by the Union and his
selection was not legitimate.

In further support of its contention that the Arbitrator was not
properly selected, the Agency maintains that the Arbitrator cannot arbitrate a
dispute concerning his own employment and asserts that the Arbitrator should be
disqualified from being a national arbitrator because he is biased. The Agency
contends that the Arbitrator is charging excessive fees for his services and
that he improperly "manipulat[ed]" the record "by moving the interim award from
one grievance (New Orleans) to the next (PARS)[,]" in order to provide himself
with additional employment. Motion for Reconsideration at 10, 9. The
Agency also contends that the Arbitrator is biased because he refused to
disqualify himself as a national arbitrator pursuant to the collective
bargaining agreement when requested to do so by the Agency.

The Agency also renews its contention that the grievances resolved by
the Arbitrator in the award in 48 FLRA 822 were barred under section
7116(d) of the Statute from arbitration by previously-filed ULP charges
concerning identical issues. The Agency maintains that the grievances did not
concern the implementation of PARS, but rather concerned the Agency's failure
to bargain over PARS, which was also the subject of the ULP charges. Therefore,
the Agency argues, the issues in the grievances and the ULP charges were the
same and the grievances should have been barred by the ULP charges under
section 7116(d) of the Statute. The Agency further contends that the Authority
failed to consider its argument that a third ULP charge, filed by the Union on
March 27, 1992, and withdrawn prior to the Agency's implementation of PARS
on April 1, 1992, served as a bar to arbitration of the grievances.(*) The Agency maintains that the
Authority must find that the third ULP charge concerned the implementation of
PARS and, therefore, constituted a bar to the grievances pursuant to section
7116(d) of the Statute.

The Agency asks that the Authority stay implementation of the decision
in 48 FLRA 822 pending reconsideration of that decision.

IV. Analysis and Conclusions

Section 2429.17 of the Authority's Rules and Regulations permits a
party that can establish the existence of "extraordinary circumstances" to
request reconsideration of a decision of the Authority. We conclude that the
Agency has not established extraordinary circumstances within the meaning of
section 2429.17 to warrant reconsideration of our decision in 48 FLRA 822.
Rather, we find that the Agency has raised the same arguments in its exceptions
which we considered and rejected in 48 FLRA 822. We also find that the Agency
has attempted to raise new allegations--that the Arbitrator did not have the
authority to arbitrate his own employment and that he is biased--that were not,
but could have been, raised in its exceptions.

The Agency's assertion that the Arbitrator was improperly selected
unilaterally by the Union was considered and rejected by the Authority in 48
FLRA 822. In its exceptions, the Agency made essentially the same arguments
regarding the selection of the Arbitrator that it is making in its motion for
reconsideration. The Agency's contention is merely an attempt to relitigate
this issue. As such, this contention does not demonstrate extraordinary
circumstances warranting reconsideration of our decision. See, for
example, U.S. Department of the Air Force, Headquarters 92nd Bomb Wing,
Fairchild Air Force Base, Washington and National Federation of Federal
Employees, Local 11, 48 FLRA 783, 785 (1993). Nothing in the Agency's
arguments in this regard, therefore, establishes that extraordinary
circumstances exist which warrant reconsideration of our decision concerning
the selection of the Arbitrator.

The Agency's argument that the Arbitrator's award was barred under
section 7116(d) of the Statute was also considered and addressed by the
Authority in 48 FLRA 822. We compared the grievances resolved by the Arbitrator
with the ULP charges which the Agency asserted barred arbitration of those
grievances and found that the issues and the underlying legal theories of the
grievances were not identical to those of the ULP charges. With respect to the
Agency's assertion that we did not consider a third ULP charge, Case
No. CH-CA-20302, filed by the Union on March 27, 1992, and subsequently
withdrawn, we did consider that portion of the Agency's argument in reaching
our decision and the Agency's assertion provides no basis for granting the
Agency's motion for reconsideration. SeeU.S. Department of the Navy,
Navy Resale Activity, Guam and American Federation of Government Employees,
Local 1689, 40 FLRA 515 (1991), order denying motion for
reconsideration of 40 FLRA 30 (1991) (allegation that Authority failed to
consider an exception failed to demonstrate extraordinary circumstances
necessary for reconsideration of Authority's order). However, as the Agency
acknowledges, that ULP charge was mentioned only briefly in a footnote to the
Agency's exceptions. The Agency stated that the third ULP charge was similar to
the first two ULPs and was a charge "on some of these same issues."
Exceptions in 48 FLRA 822 at 4 n.8. Although the Agency could
have attached a copy of the third ULP charge to its exceptions as it did with
the first two charges, it failed to do so.

Further, on examination of the ULP charge in Case No. CH-CA-20302
submitted by the Agency in its motion for reconsideration, we find nothing to
support the Agency's contention that the grievances were barred because of this
charge. The ULP charge states, in part, that "the Agency has refused and/or
failed to negotiate with the [e]xclusive [r]epresentative concerning the
adverse impact and implementation of the Agency's Performance Plans for
bargaining unit employees." Motion for Reconsideration, Attachment 4. Even
if the Agency had submitted this ULP charge with its exceptions, we would not
have found that the charge concerned the implementation of the PARS rather than
a failure to negotiate over the impact and implementation of the PARS. Also, we
note that the Agency did not actually implement PARS until April 1, 1992, which
was after the date of the ULP charge in Case No. CH-CA-20302. We made a
similar finding in 48 FLRA 822 when we found that the ULP charges "[did] not
allege that the Agency committed a ULP by actually implementing a performance
appraisal system, and indeed, could not have contained such an allegation
because the Agency had not implemented a performance appraisal system at the
time the ULP charges were filed." 48 FLRA at 829. Similarly, the
third ULP charge was filed prior to the Agency's actual implementation of PARS
and, thus, could not have been a protest of that implementation.

Consequently, we conclude that the Agency's arguments concerning
section 7116(d) of the Statute do not establish extraordinary circumstances
which warrant reconsideration of that aspect of our decision. See,
for example, U.S. Department of the Interior, Bureau of Reclamation,
Upper Colorado Region, Colorado River Storage Project, Power Operation Office,
and U.S. Department of the Interior, Bureau of Reclamation, Great Plains Region
and International Brotherhood of Electrical Workers, Locals 2159 and 1759,
46 FLRA 1202, 1207 (1993).

With respect to the Agency's contentions that the Arbitrator could not
arbitrate his own employment and that the Arbitrator was biased, we find that
such matters are not properly before us. We have held that arguments made in a
motion for reconsideration that were not made in exceptions filed with the
Authority are untimely and can provide no basis for reconsideration. SeeU.S. Department of Health and Human Services, Social Security
Administration, Kansas City, Missouri and American Federation of Government
Employees, Local 1336, 38 FLRA 1480, 1483 (1991), order denying
motion for reconsideration of 37 FLRA 816 (1990). In its exceptions in
48 FLRA 822, the Agency made no arguments concerning the Arbitrator's authority
to arbitrate his own employment or that he was biased. Further, the Agency has
not shown that it was unable to make such arguments had it desired to do so.
Consequently, the Agency's contentions in this regard provide no basis for
granting reconsideration of our decision in 48 FLRA 822.

In sum, we conclude that the Agency's arguments constitute nothing more
than disagreement with our findings and conclusions in 48 FLRA 822 and that the
Agency has failed to establish that extraordinary circumstances exist which
would warrant reconsideration of 48 FLRA 822. Accordingly, we will deny the
Agency's motion for reconsideration. Seeid.

We also conclude that the Agency has failed to establish extraordinary
circumstances or any other basis which warrants a stay of our decision in 48
FLRA 822. Accordingly, the Agency's request for a stay will be denied.
SeeInternational Association of Machinists and Aerospace Workers,
Franklin Lodge No. 2135 and International Plate Printers, Die Stampers and
Engravers Union of North America, Local Nos. 2, 24, and 32 and Graphic
Communications International Union Local No. 285 and International Association
of Siderographers, Washington Association and U.S. Department of the Treasury,
Bureau of Engraving and Printing, 44 FLRA 761 (1992) (denying a request for
a stay of an Authority decision).

V. Order

The Agency's motion for reconsideration and request for a stay of our
decision in 48 FLRA 822 are denied.

FOOTNOTES: (If blank, the decision does not
have footnotes.)

*/ In its motion for reconsideration,
the Agency refers to the year of the third ULP Charge and the Agency's
implementation of PARS as 1993. However, the record indicates that the correct
year is 1992.